[2023] UKUT 00165 (IAC)

As recorded in paragraph 41 of the decision, the issues in contention before the First-tier Tribunal were relatively narrow. The appellant did not contend that he could satisfy the Immigration Rules, either on the basis of 10 years continuous residence under paragraph 276B or on the basis of his private life under paragraph 276ADE(1). He also did not claim that he would face a risk of harm on return to Bangladesh. The focus of his argument was on the public interest in effective immigration controls, which he contended ought not to weigh significantly (or at all) against him. There were two strands to this argument.

The first strand was that although the appellant did not fall within paragraph 276B of the Immigration Rules, there was not a good reason to treat him differently to a person who did. The appellant argued that his application for a residence card, which was made before the expiry of his leave under the Immigration Rules, remains outstanding because the 2016 decision failed to include information about his appeal rights as required by the Immigration (Notices) Regulations 2003 (“the Notices Regulations”) and therefore was invalid. He submitted that if his application had been made under the Immigration Rules he would have accrued 10 years of lawful residence as his leave as a Tier 4 student would, rather than expire on 19 March 2016, have been extended by operation of section 3C of the Immigration Act 1971 (“the 1971 Act”). The appellant’s skeleton argument before the First-tier Tribunal stated that he fell short of paragraph 276B for only “a marginal and technical error” and his position “was not materially different” to a person who satisfied the conditions of paragraph 276B. He maintained that because of this the public interest in his removal was reduced.

The judge rejected this argument. She found (in paragraph 48) that the appellant was not in an analogous position to a person who had made an ‘in-time’ application under the Immigration Rules because: (a) section 3C of the 1971 Act is not applicable where a person applies under EU law rather than the Immigration Rules; (b) establishing status as an extended family member under the EEA Regulations does not automatically carry a right to reside; and (c) as an extended family member the appellant would only have had status from the date a residence card was issued and therefore the period between the application and the residence card would be a period without either leave under the Immigration Rules or status under the EEA Regulations. These findings have not been challenged and therefore we will not consider this aspect of the decision further, other than to note that the judge’s assessment of this issue was plainly consistent with the recent Upper Tribunal decision Ali & Ors (EU Law equivalence; §276B; s3C) [2022] UKUT 278 (IAC); [2022] Imm AR 1477.

The second strand of argument advanced in the First-tier Tribunal as to why significant weight should not attach to the public interest in effective immigration controls was that the appellant suffered a “historical injustice” by being deprived of an opportunity to appeal against the 2016 decision. The judge gave detailed reasons explaining why she rejected this argument. In summary, they are as follows: